The Ninth Circuit Court of Appeals recently upheld – for the second time – California’s Low Carbon Fuel Standard (“LCFS”) against constitutional challenges brought by industry groups. The case, Rocky Mountain Farmers Union v. Corey (9th Cir. 2019) (No. 17-16881) (“Rocky Mountain II”), considered the groups’ claims that all 3 historical versions of the LCFS violate the Commerce Clause and the “federal structure of the Constitution” by regulating extraterritorially. The court held that while the plaintiff’s claims had changed form since the first time the court upheld the LCFS, “both the regulations and the claims have the same core structure now as they did then.” The court used this similarity to guide its analysis and uphold the district court’s dismissal. Continue Reading
Cannabis Regulation is the New Frontier in Real Estate and Land Use Control
Posted in commercial lease, Land Use and EntitlementsCalifornia has positioned itself as a leader on emerging cannabis policy. While federal law still prohibits cannabis-related activities within the State’s borders, several largely progressive laws in California permit the possession, cultivation, transportation, and distribution of cannabis. The effects of the burgeoning cannabis industry are far-reaching, and have already proven to significantly impact the real estate industry. This Article addresses the history of cannabis regulation within California, the legality of various land use approaches employed by jurisdictions throughout the state and some of the nuances a property owner should consider when negotiating a commercial lease with a tenant who intends to use the premises for a cannabis-related use. Continue Reading
Head’s Up: Changes Made to Civil Code Section 1542
Posted in New Rules and LegislationCivil Code section 1542 waivers are commonly included in a myriad of transactional documents and typically coupled with “as is” provisions. In essence, absent an express waiver of Section 1542 in a contract, the releasing party does not release any unknown claims. Continue Reading
Five Years in the Making: California is One Step Closer to a Comprehensive Update to the CEQA Guidelines
The Governor’s Office of Planning and Research (“OPR”) has spent five years drafting a comprehensive update to 30 sections of the California Environmental Quality Act (“CEQA”) Guidelines.[1] The updated text[2] (“Final Text”) ensures the Guidelines are consistent with recent court decisions, implements legislative changes, clarifies rules governing the CEQA process, and eliminates duplicative analysis. Several changes to the Guidelines address two hot button topics: global climate change and statewide affordable housing shortages. During the deliberative process, the Agency also released its “Final Statement of Reasons for the Regulatory Action Amendment to the State Guidelines” to give more history and context to each change to the Final Text.[3]
Critical Habitat Must Be Habitat for Listed Species, Supreme Court Says
An area designated as critical habitat under the Endangered Species Act must first qualify as “habitat” for listed species, the Supreme Court held this week in the closely watched Weyerhaeuser case. The Court’s November 27, 2018 ruling, which reversed a decision by the Fifth Circuit, has the potential to narrow federal agencies’ discretion to designate as critical habitat areas that are currently unoccupied by endangered or threatened species, but the opinion leaves important questions to be answered by the lower courts – including the meaning of “habitat.” The Court also held that agency decisions not to exclude specific areas from a critical habitat designation on economic grounds are subject to judicial review, reversing the Fifth Circuit and overturning the current law in the Ninth Circuit. Continue Reading
Battle for Rent Control May Not be Over
In the months leading to the election, cities and counties began to adopt resolutions and other measures to advance potential rent control measures. In Los Angeles, the City Council approved a Resolution in support of Proposition 10 by a vote of 13-1 last month. The Resolution highlighted the increasingly high rental rates in the area and across California that have created a severe housing affordability crisis. The San Francisco Board of Supervisors approved a similar Resolution in support of Proposition 10 acknowledging the opportunity for policymakers to confront the housing affordability crisis by expanding rent control. On Tuesday, voters defeated Proposition 10 by a vote of 65% to 35%. Notwithstanding this defeat, we anticipate that local governments will continue to explore ways to address housing affordability, including rent control, as a policy priority concern. Continue Reading
California Housing Legislation (2017-2018)
State lawmakers passed over 1,200 bills this year, the most in more than a decade according to sources. Governor Brown signed 1,016 into law as of September 30th. Below is a summary of the bills signed into law regulating the planning and development of housing. The majority will take effect on January 1, 2019. Continue Reading
Ninth Circuit Determines That George Costanza Was Right!—In Limited Circumstances, Whales And Seals Are Fish (Not Mammals)
Posted in Environmental, Recent Cases - EnvironmentalMakah Indian Tribe, et al. v. Quileute Indian Tribe et al., 813 F.3d 1157 (9th Cir. 2017).
Defying the universal notion that whales and seals are, in fact, mammals, the Ninth Circuit recently affirmed in part, and reversed in part, the Western District Court of Washington’s judgment determining that such species qualify as fish in limited circumstances relating to tribal fishing rights in western Washington. Id. at 1159. While the direct determination that the use of the word “fish” may occasionally include some marine mammals may not be universally enlightening, this case painstakingly details the rules to be utilized when interpreting sovereign treaties—a tool helpful to almost any jurisdiction. (The opinion also quotes from the television show “Seinfeld,” validating George Costanza’s proclamation that whales are fish.) Continue Reading
Ninth Circuit Finds District Court Sharply Deviated from Existing Authority on CERCLA Cleanup Costs Between Military Contractor and U.S. Government When it Allocated 100 Percent of Liability to Military Contractor
Posted in Environmental, Recent Cases - EnvironmentalTDY Holdings v. United States, et al., 872 F.3d 1004 (9th Cir. 2017).
TDY brought suit for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the U.S. government relating to environmental contamination at TDY’s manufacturing plant. The district court granted judgment in favor of the government after a 12-day bench trial and allocated 100 percent of past and future CERCLA costs to TDY. On appeal, the Ninth Circuit held that the district court sharply deviated from the two most “on point” decisions regarding allocation of cleanup costs between military contractors and the U.S. government when it determined the cases were not comparable, clarified the applicability of those cases, and remanded the case to reconsider the appropriate allocation of cleanup costs between TDY and the U.S. government. Continue Reading
Ninth Circuit Holds National Park Service Has the Authority to Regulate Navigable Waters in Alaska’s National Parks and Prohibit the Use of Hovercraft (Again)
Posted in Environmental, Recent Cases - EnvironmentalSturgeon v. Frost, et al., 872 F.3d 927 (9th Cir. 2017).
In September 2011, moose hunter John Sturgeon brought an action against the National Park Service (“Park Service”), alleging it inappropriately banned him from using a hovercraft to hunt moose on the Nation River in the Yukon-Charley Rivers National Preserve (“National Preserve”). Id. at 929. On remand from the Supreme Court, the decision analyzes which entity is permitted to decide this matter after the Supreme Court rejected an earlier circuit decision supporting the ban. The court’s ruling affirms congressional intent to permit Park Services authority to manage navigable waters in Alaska’s national parks, especially those parks meant to preserve wild rivers, and describes the balance between state and federal jurisdiction. Continue Reading
